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Statement of Need: Several entities legally challenged the January 19, 2001 final rule. As a result of partial settlement with the litigants, MSHA published two documents in the Federal Register on July 5, 2001. One document delayed the effective date of 57.5066(b) regarding the evidence and the tagging provisions of the maintenance standards; clarified the effective dates of certain provisions of the final rule; and gave correction amendments. The second document was a proposed rule to clarify 57.5066(b)(1) and (b)(2) of the maintenance standards and to add a new paragraph (b)(3) to 57.5067 regarding the transfer of existing diesel equipment from one underground mine to another underground mine. The final rule on these issues was published February 27, 2002, and became effective March 29, 2002. Also as part of the settlement agreement, MSHA agreed to conduct joint sampling with industry and labor at 31 underground mines to determine existing concentration levels of DPM; assess the performance of the SKC sampler and the NIOSH Analytical Method 5040; assess the feasibility of achieving compliance with the standard's concentration limit at the 31 mines; and, to assess the impact of interferences on the sample in the metal and nonmetal underground mining environment before the limits established in the final rule became effective. Sampling and date analyses are completed and the final report is being developed. MSHA also agreed to reenter rulemaking on several other provisions. The following provisions will constitute the basis for this new rulemaking: 57.5060(a) and (b) - changing the diesel particulate matter surrogate from total carbon to elemental carbon for both the interim and final concentration limits; 57.5060(d) - permitting miners to work in areas where diesel particulate matter exceeds the applicable concentration limit; 57.5060(e) - prohibiting the use of personal protective equipment to comply with the concentration limits; 57.5060(f) - prohibiting the use of administrative controls to comply with the concentration limits; 57.5061(b) - changing reference of total carbon to elemental carbon; 57.5061(c) - deleting reference to "area" and "occupational" sampling for compliance; 57.5062 - addressing the diesel particulate matter control plan.

Summary of the Legal Basis: Promulgation of these regulations is authorized by section 101 of the Federal Mine Safety and Health Act of 1977.

Alternatives: This rulemaking action is a result of the parties' settlement negotiations. This action will not decrease protection for miners.

Anticipated Costs and Benefits: MSHA will develop a preliminary economic analysis to accompany the proposed rule.

Risks: Several epidemiological studies have found that exposure to diesel exhaust presents potential health risk to workers. These potential adverse health effects range from headaches and nausea to respiratory disease and cancer. In the confined space of the underground mine environment, occupational exposure to diesel exhaust may present a greater hazard due to ventilation limitations and the presence of other airborne contaminants, such as toxic mine dusts or mine gases. We believe that the health evidence forms a reasonable basis for reducing miners' exposure to diesel particulate matter. Proceeding with rulemaking on the provisions discussed above, will reduce miners exposure to DPM.